Section NR 350.008 - Process for establishing a mitigation bank(1) PROCESS. (a) A mitigation bank sponsor shall prepare and submit a mitigation bank prospectus to the department under s. NR 350.007(1) to (3).(b) Within 90 days of receipt of a bank prospectus, the department shall provide through email or mail the department's written opinion of the likelihood that the proposed compensation site will comply with the requirements of this chapter. The department may request a site visit prior to providing its written opinion.(c) Based on comments received from the department a prospective mitigation bank sponsor shall prepare and submit a draft mitigation bank instrument to the department. A complete draft mitigation bank instrument shall include all of the following: 1. A complete compensation site plan under s. NR 350.007(6).2. Information on the operation of the bank including the expected number of credits, provisions for the sale of credits, accounting and reporting procedures, and provisions for site inspections pursuant to s. NR 350.009.3. A discussion of the persons responsible for management of the bank accounting, long-term ownership, monitoring, maintenance, and long-term management of the site.4. Proposed financial assurances for the site pursuant to sub. (3).5. A proposed conversation easement for the site pursuant to sub. (4).6. A proposed schedule that includes a timeline for submittal of a final mitigation bank instrument, construction, and monitoring under s. NR 350.007(6).(d) Within 90 days of receipt of a complete draft mitigation bank instrument, the department shall provide through email or mail a status update letter that may include any of the following: 1. The department may recommend that the sponsor prepare and submit a final mitigation bank instrument.2. The department may require supplemental information regarding specific components of the draft mitigation banking instrument prior to the preparation and submittal of the final mitigation banking instrument.3. The department may require a revised draft mitigation banking instrument submittal if the original proposal is determined to have a high likelihood of failure or key components were missing from the submittal.(e) If the sponsor completes a submittal under par. (d) 1. or 2., the department shall provide through email or mail a written description of any missing items that must be included and concerns that need to be addressed to make the final mitigation bank instrument approvable.(f) Based on comments received from the department a prospective mitigation bank sponsor shall prepare a final mitigation bank instrument. The final mitigation bank instrument shall include all of the following: 1. Any changes requested by the department, as described in par. (d).2. Final versions of the construction and post construction financial assurances that are put in place under sub. (3).3. A final version of the conservation easement or comparable legal instrument for the site under sub. (4).(g) After a mitigation bank sponsor submits a final mitigation bank instrument to the department, the department shall do all of the following:1. Within 30 days, notify the mitigation bank sponsor whether the department intends to approve the final mitigation bank instrument.2. Once the U.S. army corps of engineers determines that the instrument will be approved, the department shall be a signatory to the final mitigation bank instrument.3. Include the bank on a mitigation banking web page listing banks that are open and approved to sell credits. If bank sponsors choose to include contact information and a project narrative the department shall provide this information on the mitigation banking web page. Note: As an interagency review team member, the department will review mitigation bank prospectus submittals and issue any comments to the U.S. army corps of engineers within 90 days of receipt; will review draft mitigation bank instrument submittals and issue any comments to the U.S. army corps of engineers within 90 days of receipt; and the department will review final mitigation bank instrument submittals and notify its intent to approve or object within 30 days of receipt. Should the U.S. army corps of engineers' review of any of these documents extend beyond the stated timeline, the department's comments may be subsequently delayed in reaching a mitigation bank sponsor.
(2) CREDIT RELEASE SCHEDULE. (a) The department shall require a credit release schedule as part of a mitigation bank instrument under s. NR 350.007(6) and review a credit release schedule proposal as part of its review of the draft and final mitigation bank instrument proposals under sub. (1). (b) The credit release schedule for a mitigation bank may include scheduled releases at project milestones, including but not limited to mitigation bank instrument approval and signing; the letter of compliance from the department stating that construction, as documented in the as-built report under s. NR 350.009(2) (c), and all corrective actions, if applicable, are complete; and approval of a monitoring report that documents fulfillment of performance standards.(c) The department shall review a proposed credit release schedule in accordance with s. 281.36(3w) (b), Stats., based on the following considerations:1. The level of financial assurances proposed for construction, maintenance, and monitoring of a mitigation project.2. The level of risk associated with a proposed mitigation project design, including but not limited to the amount of engineered structures, extent of excavation, and invasive plant species considerations.(d) If a preservation activity is proposed for an area or areas of a mitigation bank project, a credit release schedule that allows for the full release of credits after the site protection mechanism is recorded and the mitigation bank instrument is approved may be proposed for preservation areas of the mitigation bank.(3) FINANCIAL ASSURANCE REQUIREMENTS. (a) The department shall require the mitigation bank sponsor to submit a performance bond, irrevocable letter of credit, irrevocable escrow account, irrevocable trust account, or other financial assurance to ensure that a mitigation project is constructed, operated, monitored, and maintained according to ss. NR 350.007(4) and 350.009(2) to (3) and in accordance with the approvals issued by the department and other agencies involved in the approval process. The department may waive the requirement for financial assurances for construction on a case-by-case basis if the first credit release for a mitigation bank is scheduled to occur after the mitigation bank sponsor has submitted and the department has approved the as-built report.(b) When multiple regulatory authorities have jurisdiction over a mitigation project, the regulatory authorities may develop and implement a cooperative financial security arrangement to avoid requiring the mitigation bank sponsor to provide financial assurances with more than one regulatory authority for the same mitigation project.(c) The department shall require financial assurances to guarantee adequate post-construction monitoring and maintenance for a specified time period after construction is complete, or after performance standards are met, depending on the type of mitigation project.(d) The mitigation bank sponsor shall submit a proposal for financial assurances as part of the draft and final mitigation bank instrument. This proposal shall include an estimate of costs for construction, operation, maintenance, and monitoring.(e) The department shall evaluate the proposed amount of financial assurances and may require an updated proposal in the subsequent mitigation bank instrument submittal or as supplemental information.(f) The mitigation bank sponsor shall submit financial assurance instruments that meet requirements determined by the department to be reasonably necessary to assure proper construction, operation, monitoring, and maintenance of the mitigation project. Requirements shall, at a minimum, include all of the following: 1. Forms of financial assurance, which include a third party as obligor, shall be issued by a person authorized to do business in this state.2. Any financial assurance instrument shall provide that the financial assurance cannot be canceled or modified except after not less than 90 days' notice in writing to the department by certified mail. Not less than 30 days prior to the cancellation or modification of the financial assurance, the mitigation bank sponsor shall deliver to the department a replacement for the financial assurance. The department shall then notify the mitigation bank sponsor by email or mail whether the replacement instrument is acceptable. If the replacement financial assurance is not provided and accepted, the original financial assurance shall remain in effect.3. The financial assurances shall provide that the mitigation bank sponsor will perform all requirements of the approvals for the project. If the project site or the mitigation bank is transferred, the new owner or successor in interest shall provide the necessary financial assurance in the amount required by the department for the project.4. The financial assurances shall be payable to the "State of Wisconsin, Department of Natural Resources."(g) The department may periodically reevaluate and approve modifications to the amount or form of financial assurance to reflect completion of tasks that are required under the department's approval.(h) A mitigation bank sponsor may submit a request to the department to change from one method of financial assurance to another. The department may approve or deny the request.(i) A mitigation bank sponsor shall notify the department by certified mail of the commencement of any voluntary or involuntary proceeding under bankruptcy code, 11 USC, naming the mitigation bank sponsor as debtor, within 10 days of commencement of the proceeding.(4) LONG-TERM PROTECTION OF MITIGATION BANK SITE. (a) A mitigation bank sponsor shall grant a conservation easement under s. 700.40, Stats., to the department or shall execute a comparable legal instrument approved by the department to ensure that the restored, enhanced, preserved, or created wetland and any creditable uplands will not be destroyed or substantially degraded by any subsequent owner of or holder of interest in the property on which the bank site is located. The department shall revoke approval for a mitigation bank if the bank sponsor fails to provide the conservation easement.(b) The department shall modify or release a conservation easement issued under sub. (1) if the conditions in s. 281.36(8m), Stats., apply. (5) LONG-TERM MANAGEMENT. (a) The department shall require a long-term management plan as part of a mitigation bank instrument under s. NR 350.007(6).(b) The long-term management plan must identify all of the following:1. The party responsible for ownership and all long-term management and protection of the mitigation project site.2. Any legal mechanisms required as part of the mitigation site's long-term management.3. A description of planned long-term management needs and actions including a schedule of predicted activities.4. An annual cost estimate to complete the long-term management needs and actions.5. A description of the funding source or mechanism that will be used to pay for long-term management needs and actions, including the planned investment, forecasted fund growth, and a narrative describing the sustainability of the funds.(c) A mitigation bank sponsor may choose to be responsible for the long-term management or they may propose to transfer the responsibility to a land stewardship entity, such as a public agency, non-governmental organization, or private land manager.(d) The department may consider any of the following as viable long-term funding mechanisms: 1. Non-wasting endowment.2. Legally established trusts.3. Contractual agreements with future responsible parties.4. Other legally established funding mechanisms, as appropriate.(e) A mitigation bank sponsor may propose to transfer control and responsibility of the long-term management funding source to a land stewardship entity, such as a public agency, non-governmental organization, or private land manager.(6) PUBLIC NOTICE. (a) The department shall provide online public notification for a received prospectus.(b) The department shall develop a public notice for each prospectus to include all of the following information: 1. The name of the mitigation bank sponsor.2. A brief description of the mitigation bank including all mitigation bank sites.3. The name, email address, and phone number of a department staff member who can receive comments and respond to questions.4. A date by which the department will accept and consider comments.(c) The department shall distribute the public notice to appropriate news media in the vicinity of the proposed action.(7) REVIEW FEE. The department shall charge a fee pursuant to s. 281.36(12) (b), Stats., for reviewing, investigating, and making decisions to approve or not approve mitigation bank instruments at the time that a mitigation bank sponsor submits a draft mitigation bank instrument to the department. The submittal fee for a draft mitigation bank instrument shall be $800.Wis. Admin. Code Department of Natural Resources NR 350.008
CR 00-164: cr. Register January 2002 No. 553, eff. 2-1-02.Adopted by, CR 21-026: cr. Register February 2022 No. 794, eff. 3-1-22; correction in (1) (c) 4., 5., (e), (f) 1., 2., 3., (2) (a), (4) (b) made under s. 35.17, Stats., Register February 2022 No. 794, eff. 3/1/2022